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MAXIMS, LEGAL

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Originally appearing in Volume V17, Page 926 of the 1911 Encyclopedia Britannica.
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MAXIMS, LEGAL . A See also:maxim is an established principle or proposition. The Latin See also:term See also:maxima is not to be found in See also:Roman See also:law with any meaning exactly analogous to that of a legal maxim in the See also:modern sense of the word, but the See also:treatises of many of the Roman jurists on Regulae definitiones, and Sententiae See also:juris are, in some measure, collections of maxims (see an See also:article on " Latin Maxims in See also:English Law " in Law Mag. and Rev. xx. 285); See also:Fortescue (De laudibus, c. 8) and Du Cange treat maxima and See also:regula as identical. The attitude of See also:early English commentators towards the maxims of the law was one of unmingled adulation. In See also:Doctor and Student (p. 26) they are described as " of the same strength and effect ifs the law as statutes be." See also:Coke (Co. Litt. II A) says that a maxim is so called " Quia maxima est ejus dignitas et certissima auctoritas, atque quod maxime See also:omnibus probetur." " Not only," observes See also:Bacon in the See also:Preface to his Collection of Maxims, " will the use of maxims be in deciding doubt and helping soundness of See also:judgment, but, further, in gracing See also:argument, in correcting unprofitable subtlety, and reducing the same to a more See also:sound and substantial sense of law, in reclaiming vulgar errors, and, generally, in the See also:amendment in some measure of the very nature and complexion of the whole law." A similar See also:note was sounded in See also:Scotland; and it has been well observed that " a glance at the pages of See also:Morrison's See also:Dictionary or at other early reports will show how frequently in the older Scots law questions respecting the rights, remedies and liabilities of individuals were determined by an immediate reference to legal maxims " (J. M. See also:Irving, Encyclo.

Scots Law, s.v. " Maxims "). In later times less value has been attached to the maxims of the law, as the development of See also:

civilization and the increasing complexity of business relations have shown the See also:necessity of qualifying the propositions which they enunciate (see See also:Stephen, Hist. Crim. Law, ii. 94 n: See also:Yarmouth v. See also:France, 1887, 19 Q.B.D., per See also:Lord See also:Esher, at p. 653, and See also:American authorities collected in See also:Bouvier's Law See also:Diet. s.v. " Maxim "). But both historically and practically they must always possess See also:interest and value. A brief reference need only be made here, with examples by way of See also:illustration, to the See also:field which the maxims of the law See also:cover. Commencing with rules founded on public policy, we may note the famous principle—See also:Salus poputi supremo lex (xii.

Tables; Bacon, Maxims, reg. 12)—" the public welfare is the highest law." It is on this maxim that the coercive See also:

action of the See also:State towards individual See also:liberty in a See also:hundred matters is based. To the same See also:category belong the maxims—Summa ratio est quae See also:pro religione facit (Co. Litt. 341 a)—" the best See also:rule is that which advances See also:religion "—a maxim which finds its application when the enforcement of See also:foreign See also:laws or judgments supposed to violate our own laws or the principles of natural See also:justice is in question; and See also:Dies dominicus non est juridicus, which exempts See also:Sunday from the lawful days for juridical acts. Among the maxims See also:relating to the See also:crown, the most important are Rex non potest peccare (2 Rolle R. 304)—" The See also:King can do no wrong "—which enshrines the principle of ministerial responsibility, and Nullum tempus occurrit regi (2 Co. Inst. 273)—" See also:lapse of See also:time does not See also:bar the crown, a maxim qualified by various enactments in modern times. Passing to the judicial See also:office and the See also:administration of justice, we may refer to the rules—Audi alteram parlem—a proposition too See also:familiar to need either See also:translation or comment; Nemo debet esse judex in proprid sud causd (12 Co. See also:Rep. 114)—" no See also:man ought to be See also:judge in his own cause "—a maxim which See also:French law,. and the legal systems based upon or allied to it, have embodied in an elaborate network of rules for judicial See also:challenge; and the maxim which defines the relative functions of judge and See also:jury, Ad quaestionem facti non See also:respondent judices, ad quaestionem legis non respondent juratores (8 Co.

Rep. 155). The maxim See also:

Boni judicis est ampliare jurisdictionem (Ch. Prec. 329) is certainly erroneous as it stands, as a judge has no right to " extend his See also:jurisdiction." If justitiam is substituted for jurisdictionem, as Lord See also:Mansfield said it should be (1 See also:Burr. 304), the maxim is near the truth. A See also:group of maxims supposed to embody certain fundamental principles of legal right and obligations may next be referred to: (a) Ubi See also:jus ibi remedium (see Co. Litt. 197 b)—a maxim to which the See also:evolution of the flexible " action on the See also:case," by which wrongs unknown to the " See also:original writs " were dealt with, was historically due, but which must be taken with the See also:gloss Damnum absque injuria—" there are forms of actual damage which do not constitute legal injury " for which the law supplies no remedy; (b) Actus Dei nemini facit injuriam (2 See also:Blackstone, 122)—and its allied maxim, Lex non cogit ad impossibilia (Co. Litt. 231 b)—on which the whole See also:doctrine of vis See also:major (force majeure) and impossible conditions in the law of See also:contract has been built up. In this category may also be classed Volenti non See also:fit injuria (See also:Wingate, Maxims), out of which sprang the theory—now profoundly modified by See also:statute—of " See also:common employment " in the law of employers' liability; see See also:Smith v.

See also:

Baker, 1891, A.C. 325. Other maxims See also:deal with rights of See also:property—Qui See also:prior est tempore, potior est jure (Co. Litt. 14 a), which consecrates the position of the See also:bead possidentes alike in municipal and in See also:international law; Sic ulere tuo ut alienum non laedas (9 Co. Rep. 59), which has played its See also:part in the determination of the rights of adjacent owners; and Donuts sua cuique est tutissimum refugium (5 Co. Rep. 92)—" a man's See also:house is his See also:castle," a doctrine which has imposed limitations on the rights of See also:execution creditors (see EXECUTION). In the laws of See also:family relations there are the maxims Consensus non concubitus facit matrimonium (Co. Litt. 33 a)—the See also:canon law of See also:Europe prior to the See also:council of See also:Trent, and still law in Scotland, though modified by legislation in See also:England; and See also:Pater is est See also:quern nuptiae demonstrant (see Co.

Litt. 7 b), on which, in most civilized countries, the presumption of See also:

legitimacy depends. In the See also:interpretation of written See also:instruments, the maxim Noscitur a sociis (3 Term Reports, 87), which proclaims the importance of the context, still applies. So do the rules Expressio unius est exclusio allerius (Co. Litt. 210 a), and Contemporanea expositio est optima et fortissima in lege(2 Co. Inst. I1), which lets in See also:evidence of contemporaneous user as an aid to the interpretation of statutes or documents; see See also:Van See also:Diemen's See also:Land Co. v. Table Cape Marine See also:Board, 1906, A.C. 92, 98. We may conclude this See also:sketch with a See also:miscellaneous See also:summary: See also:Caveat emptor (Hob. 99)—" let the purchaser beware "; Qui facit per alium facile per se, which affirms the See also:principal's liability for the acts of his See also:agent; Ignorantiajuris neminem excusat, on which rests the See also:ordinary See also:citizen's See also:obligation to know the law; and Vigilantibus non dormienlibus See also:jura subveniunt (2 Co.

Inst. 69o), one of the maxims in accordance with which courts of See also:

equity administer See also:relief. Among other " maxims of equity " come the rules that " he that seeks equity must do equity," i.e. must See also:act fairly, and that " equity looks upon that as done which ought to be done "—a principle from which the " See also:conversion " into See also:money of land directed to be sold, and of money directed to be invested in the See also:purchase of land, is derived. The principal collections of legal maxims are: English Law: Bacon, Collection of Some Principal Rules and Maxims of the Common Law (163o); See also:Noy, See also:Treatise of the principal Grounds and Maxims of the Law of England (1641, 8th ed., 1824); Wingate, Maxims of See also:Reason (1728); See also:Francis, Grounds and Rudiments of Law and Equity (2nd ed. 1751); See also:Lofft (annexed to his Reports, 1776); See also:Broom, Legal Maxims (7th ed. See also:London, 19o0). Scots Law: Lord Trayner, Latin Maxims and Phrases (2nd ed., 1876) ; See also:Stair, Institutions of the Law of Scotland, with See also:Index by More (See also:Edinburgh, 1832). American Treatises: A. I. See also:Morgan, English Version of Legal Maxims (See also:Cincinnati, 1878) ; S. S. Peloubet, Legal Maxims in Law and Equity (New See also:York, 1880).

(A. W.

End of Article: MAXIMS, LEGAL

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